Common Cause’s Opposition to the Motion to Dismiss

Common Cause has filed its opposition to the Senate’s motion to dismiss its lawsuit seeking to have the filibuster declared unconstitutional. Its brief clearly demonstrates that there is no persuasive answer, and in some cases no answer at all, to the problems identified in my earlier post on this subject. A few observations should suffice.

The nature of the alleged injury. Common Cause claims that the plaintiffs were injured by the use of the filibuster to block specific bills, namely the DISCLOSE and DREAM Acts. Yet it says that it is irrelevant whether these bills would have become law in the absence of the filibuster. Brief at 3 (“the plaintiffs need not show that both bills would have been enacted but for the filibuster to have standing.”). Merely showing that a bill benefiting them might have passed but for the filibuster demonstrates a procedural injury, it argues, and there is no need to show an actual substantive injury.

By so lowering the bar, Common Cause would create a class of standing considerably broader than taxpayer standing (which the courts have rejected). Surely every person in the United States, if not the world, can claim that they would have benefitted from a law that might have passed but for the filibuster.

At the same time, Common Cause continues to rely on the claim that the two laws in question would have been enacted but for the filibuster. Brief at 42 (DREAM Act “would have been enacted into law, but for the use of Rule XXII”); 43 (“The DREAM and DISCLOSE Acts would have been enacted but for the defendants’ use of Rule XXII.”). It thus seeks to have it both ways—to claim a substantive injury for purposes of distinguishing the plaintiffs from the world at large, while relieving itself of the burden of proving such an injury.

Powell v. McCormack. Although Common Cause cites Powell dozens of times, it fails to acknowledge that the claim the Supreme Court allowed to stand was Powell’s claim for back salary.  This omission allows Common Cause to avoid dealing with the fact that its own claims differ in numerous relevant respects.

Powell’s injury, the loss of salary, was direct, concrete and specific to him alone. This is hardly comparable to the “procedural injury” allegedly suffered by the Common Cause plaintiffs, which is little more than a re-characterization of a generalized grievance with respect to the Senate’s procedures.

Moreover, Powell’s injury could be directly attributed to a defendant, the Sergeant at Arms, who was responsible for disbursing member salaries and had refused to pay Powell the monies at issue. Thus, while it is true that the Sergeant at Arms was not responsible for excluding Powell from the House of Representatives, he could be said to have caused Powell’s monetary injury. Moreover, while the Sergeant at Arms had no power to re-admit Powell to the House of Representatives, he could satisfy the monetary injury by paying the back salary due.

In contrast, Common Cause cannot explain how the Senate defendants caused the alleged procedural injuries, nor how judicial relief directed at these defendants could redress these injuries. (The same is true if the injuries are viewed as substantive, rather than procedural.)

Finally, the act at issue in Powell, the payment (or non-payment) of money, was a ministerial, non-legislative act. To the extent that one can identify any relevant acts performed (or not performed) by the Senate defendants, such as rulings the Vice President might issue in presiding over the Senate, they are not remotely analogous.

 Judicial Watch v. U.S. Senate. Common Cause’s attempt to distinguish the D.C. Circuit’s Judicial Watch decision borders on painful. Apparently Common Cause thinks that Judicial Watch made a mistake in alleging a “substantive injury” (the delay in court proceedings caused by filibustering of judicial nominees) as opposed to a “procedural injury” (the loss of opportunity to get more judges confirmed because the Senate used an unconstitutional procedure). There is, however, nothing in the D.C. Circuit’s opinion to suggest that re-characterizing Judicial Watch’s complaint to make it more speculative and remote would have somehow made it more justiciable.

Common Cause also attempts to distinguish the two cases on the grounds that Judicial Watch sought an injunction to “rewrite” the Senate rules. In fact, Judicial Watch originally sought, just as Common Cause has, a declaratory judgment (not only against the Senate itself but against the Secretary and the Sergeant at Arms) that the Senate’s cloture rules are unconstitutional. The D.C. Circuit, however, believed that such relief would not redress Judicial Watch’s injuries because it might leave the Senate without any cloture rule at all. Therefore, the court interpreted Judicial Watch’s request for “any and all other relief the Court deems just and proper” as “encompassing a request for judicial substitution of a simple majority rule for cloture.” Such a request seems indistinguishable from what Common Cause seeks.

It is difficult to see how Common Cause is helped by seizing on the D.C. Circuit’s characterization of such relief as a “judicial rewrite” of the Senate’s rules. This was the court’s characterization, and the fact that Common Cause may disagree with it is hardly a basis for distinguishing the cases. In any event, characterizing the relief differently would not in any way have changed the outcome of the Judicial Watch case.

Rather more important, but unmentioned by Common Cause, is the court’s observation that granting the relief sought would “obviously raise the most acute problems, given the Senate’s independence in determining the rules of its proceedings and the novelty of judicial interference with such rules.” Although dicta, this statement highlights the obvious— judicial interference with congressional rules is not an ordinary exercise of the power of judicial review.

Causation and Redressability. For the three elected or appointed officers of the Senate, Common Cause makes almost no effort to explain how they either caused or could redress the alleged injuries suffered by plaintiffs. With respect to the Parliamentarian, for example, its entire argument is “Elizabeth MacDonough, the Parliamentarian of the United States Senate, advises Senators on all the Standing Rules of the Senate, including interpretations of ‘how to implement applicable procedures’ in particular circumstances.” Brief at 60. How this establishes MacDonough as a proper defendant is left to the imagination.

It makes a slightly greater effort with respect to the Vice President. It notes that the Vice President is the Presiding Officer of the Senate. Under Rule XXII, the Presiding Officer presents the question of whether to close debate to the Senate. This, Common Cause argues, makes him a proper defendant, although it is still rather opaque on how performing this role would cause the injuries in question (ie, the failure of the Senate to vote on and/or pass the DISCLOSE and DREAM Acts).

Assuming, however, that such causation could be established, it would seem that the proper defendant would be the actual Presiding Officer at the time that the two pieces of legislation in question were considered. Common Cause asserts that it is “irrelevant” whether the Vice President was actually presiding at the relevant times, but this bare assertion is hardly persuasive. The Vice President only presides over the Senate when he is present (and, indeed the Constitution explicitly provides for a President pro tempore to act in the Vice President’s absence). If the Vice President wasn’t presiding at the relevant times (and apparently he was not), why wouldn’t the proper defendant be the actual Presiding Officer? Common Cause offers no answer.

It does, however, offer the following with respect to redressability: “A declaratory judgment that the supermajority vote requirement in Rule XXII is unconstitutional will guide the future conduct of the President of the Senate, just as the declaratory judgment in Powell provided needed guidance and direction to employees of the House that the House had no power to refuse to seat Rep. Powell.” Brief at 58.

However, as already noted, in Powell the Sergeant at Arms had the power to redress the injury by paying the back salary. Common Cause offers no explanation as to how the “future conduct” of the Vice President would redress the injuries in question. Specifically, it fails to address the following point in the Senate’s motion to dismiss: “[E]ven when the Vice President is presiding over the Senate, it is the Senate that ultimately decides its procedures and rules, as all rulings of the presiding officer interpreting and applying Senate rules are subject to appeal and determination by the Senate.”

Common Cause’s silence on this point demonstrates that it cannot establish either causation or redressability, and that any declaratory relief entered against the Vice President would be nothing more than an advisory opinion.

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